[PDF] Sentence Discounting: Sentencing and Plea Decision- Making

Plea of Guilty - Judiciary of New York

a plea of guilty [to the offenses and under the terms I have just outlined]? To District Attorney if the plea is not to the entire indictment: Is that plea and sentence commitment acceptable? Or Is that plea acceptable, subject to your sentence recommendation? To Defendant: Optional: Do you swear or affirm to tell the whole truth, and

Sentence Discounting: Sentencing and Plea Decision- Making

sentence differential due to the nature and timing of a plea, the first ‘guideline judgment’ concerning section 196 ( Du Plooy v HMA ) used the term “sentence discount ” 3 As such, there is a basis to use

2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF

pre-sentence investigation report prepared and submitted to the Court by the Probation Department I also understand that the Court and counsel cannot promise me now what sentence will be imposed I understand that in deciding what sentence it will impose, the Court will calculate my sentencing range under the Sentencing Guidelines

EXPLANATION OF RIGHTS AND PLEA OF GUILTY Count (Presumptive

This sentence range includes the total sentence length that will apply to all offenses sentenced at this sentence hearing The court may depart from the presumptive sentence disposition or sentence range upon a finding of the existence of an aggravating or mitigating factor The State has asserted the following aggravating factors:

Challenging a Conviction or Sentence After a Plea Bargain

court to re-sentence you in accord with the plea agreement Also, if the plea gave the superior court sentencing leeway, but the court made a calculation mistake or did not apply the sentencing factors properly, the court of appeal could modify the sentence or remand the case for re-sentencing 5 II Issues that Cannot Be Raised Following a Plea

GUILTY PLEAS 1 Generally 1 §24-2 Waiver of Counsel 11 §24-3

mandatory supervised release term will be added to that sentence " People v Flowers, 208 Ill 2d 291, 802 N E 2d 1174 (2003) To appeal from a judgment based on a guilty plea the defendant must within 30 days file a written motion seeking either reconsideration of the sentence or withdrawal of the guilty plea Although the failure to file

Case No Plaintiff, Citation No PETITION TO PLEAD GUILTY/ NO

is the subject of this plea to a pre-sentence investigation writer 17 I PLEAD “GUILTY” because in _____ County, Oregon, I did the following: _____ _____ _____ _____ _____ 18 I PLEAD “NO CONTEST” because I understand that a jury or judge could find me guilty of the charge(s) I prefer to accept the plea offer or plead to the charge

[PDF] plea verb

[PDF] Pleaaaase pour ce soir avant 00H il me faudrait un plan je suis perdue

[PDF] pleaaase !! besoin de votre aide !! j'ai besoin de vos idée pour cette rédaction que je dois finir ce soir

[PDF] pleas meaning

[PDF] pleas synonym

[PDF] please !

[PDF] please !!!!!! coup de main

[PDF] Please !!!!!! Je suis perdue

[PDF] please aider moi je vous en supplie ses pour demain je comprend rien

[PDF] PLEASE BESOIN D AIDE POUR LIRE UN ARBRE PHYLOGENETIQUE SVP

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Sentence Discounting:

Sentencing and Plea Decision-

Making

Literature Review

Submitted to the Scottish Sentencing Council in May 2019

Published December 2020

Authors: Dr Jay Gormley, Dr Rachel McPherson and Professor Cyrus Tata Centre for Law, Crime & Justice, The Law School, University of Strathclyde Literature review prepared for the consideration of the Scottish Sentencing Council. The views expressed are those of the authors and do not necessarily represent those of the Council. www.scottishsentencingcouncil.org.uk sentencingcouncil@scotcourts.gov.uk 1

Sentence Discounting:

Sentencing and Plea Decision-Making

Sentence Discounting:

Sentencing and Plea Decision-Making

Dr Jay Gormley, Dr Rachel McPherson and Professor Cyrus Tata Centre for Law, Crime & Justice, The Law School, University of Strathclyde

Literature Review

Report to the Scottish Sentencing Council

May 2019

2

Sentence Discounting:

Sentencing and Plea Decision-Making

TABLE OF CONTENTS

1.1 PLEA DECISION-MAKING AND SENTENCING: CONTEXT ........................................... 4

1.1 INTRODUCTION ............................................................................................................. 4

1.1.2 Terminology.......................................................................................................... 4

1.2 THE PRE-TRIAL DECISION-MAKING CONTEXT ........................................................................ 6

1.3 LAWYER-CLIENT RELATIONS AND THE IMPACT OF CHANGES TO FEE STRUCTURES ....................... 10

1.4 THE SENTENCE DIFFERENTIAL AND THE CONTEXT OF LEA NEGOTIATION ................................ 11

1.5 CONCLUSION .............................................................................................................. 12

2.0 SENTENCING AND PLEA DECISION-MAKING: ISSUES AND DEBATES ........................... 12

2.1 INTRODUCTION ............................................................................................................ 12

2.2 THE SENTENCE DIFFERENTIAL CONTROVERSY .................................................................... 13

2.3 VICTIM RATIONALE ....................................................................................................... 14

2.3.2 Limitations of the Victim Rationale.......................................................................... 14

2.4 REMORSE RATIONALE ................................................................................................... 16

2.4.1 Limitations to the Remorse Rationale...................................................................... 18

2.5 EFFICIENCY RATIONALES ............................................................................................... 19

2.5.2 Limitations to the Efficiency Rationale ..................................................................... 21

2.6 CONCLUSION .............................................................................................................. 24

3.0 SCOTS LAW.............................................................................................................. 25

3.1 INTRODUCTION ............................................................................................................ 25

3.2 A BRIEF HISTORY OF SCOTS LAW IN RELATION TO THE SENTENCE DIFFERENTIAL ........................ 25

3.3 APPLYING THE SENTENCE DISCOUNT ................................................................................ 27

3.3.2 Overwhelming Evidence ....................................................................................... 28

3.4 PRESUMPTION AGAINST SHORT SENTENCES AND SENTENCE DISCOUNTING ............................... 29

3.5 CONCLUSION .............................................................................................................. 30

4.0 THE LAW GOVERNNING SENTENCING AND PLEA DECISIONS IN OTHER DECISIONS IN

OTHER JURISDICTIONS .................................................................................................... 31

4.1 INTRODUCTION.......................................................................................................... 31

4.2 ENGLAND AND WALES ................................................................................................... 31

4.3 THE REPUBLIC OF IRELAND ............................................................................................ 33

4.4 CYPRUS .................................................................................................................... 35

4.5 CANADA .................................................................................................................... 36

4.6 HONG KONG ............................................................................................................... 37

4.7 SOUTH AFRICA ............................................................................................................ 38

4.8 AUSTRALIA ................................................................................................................. 40

4.9 NEW ZEALAND ............................................................................................................ 42

4.10 NIGERIA ................................................................................................................... 42

3

Sentence Discounting:

Sentencing and Plea Decision-Making

4.11 INDIA ....................................................................................................................... 43

4.12 CONCLUSION ............................................................................................................ 44

5.0 SENTENCING AND PLEA-DECISION-MAKING: EMPIRICAL EVIDENCE ............................ 45

5.1 INTRODUCTION ............................................................................................................ 45

5.2 PUBLIC CONFIDENCE .................................................................................................... 45

5.3 OFFICIAL DATA ............................................................................................................ 49

5.4 CONCLUSION .............................................................................................................. 52

6.0 KEY GAPS IN KNOWLEDGE ABOUT SENTENCING AND PLEA DECISION-MAKING ......... 53

4

Sentence Discounting:

Sentencing and Plea Decision-Making

1.1 Plea Decision-Making and Sentencing: Context

1.1 Introduction

Although the evidentially-contested trial is the focus of popular culture and textbook commentary, in common with other English-speaking countries, such trials are relatively rare in Scotland. In practice, most Anglo-American systems resolve criminal cases that proceed to court by way of a guilty plea. People often plead guilty following some explicit or implicit agreement between the state (either the prosecution1 or the judge depending on the jurisdiction) and the defence. The

effect of a plea on a sentence is, as shall be seen, contingent and direct consideration of a guilty/not

guilty plea is only one component of a complex set of dynamics. It is crucial to understand the context in which persons accused of an offence make their pleading decisions in order to assess the state of knowledge concerning the relationship between sentencing and plea decision-making. Thus, this chapter briefly sets out the context of pre-trial decision-making (before -client relations, and plea negotiation. However, first, it is essential to clarify some terminology.

1.1.2 Terminology

What term should refer to the potential difference in a sentence specifically because of a guilty plea (as opposed to a not guilty plea)? Various terms are encountered in case law, legislation, and textbooks around the world use different terminologies includingsentence penalty While all these terms refer the same differential (between the sentence if pleading not guilty compared to pleading guilty), the various terms carry different normative implications. Some argue that the effect of different sentences based on how a person pleads is to reward those who admit their guilt. Others argue that considering how a person pleads in sentencing undermines the presumption of innocence by penalising those who exercise their right to be presumed innocent and put the state to proof. Much depends upon what one sees as the defaul or baseline sentence. Terms such as reduction and discount imply that the baseline sentence is that which would have been passed if the accused pled not guilty and was convicted at trial of the same charges. Thus, from this

perspective, the post-trial sentence is the baseline sentence, and the sentence differential is

1 In Scotland, there is no statistical data available from the Crown Office and Procurator Fiscal Service

(COPFS) on the prevalence of charge negotiation or fact negotiation. However, such practices are widely thought to be routine. 5

Sentence Discounting:

Sentencing and Plea Decision-Making

considered a discount that is deducted from that baseline sentence. However, some consider the

Lynch suggests that

percent or more of cases end in a negotiated disposition, it is unclear percent of cases should not rather be 2 While section 196 of the Criminal Procedure (Scotland) Act 1995 does not provide a name for the sentence differential due to the nature and timing of a plea, the guideline jconcerning section 196 (Du Plooy v HMA) .3 As such, there is a basis to use in the Scottish context. However, some legal practitioners in Scotland find the term disagreeable.4 Those who disagree with the term discount suggested that there were negative connotations and preferred different terminology, Interestingly, statute and guidance in England and Wales use the . Yet, in England and Wales, Dawes et al found that the notion of 5 Moreover, and and Wales might be detrimental to public confidence.6 Since there is no consensus in the literature, or amongst practitioners, regarding the terminology, (and because the issue is inherently controversial), plea- dependent sentence differential, 7 for short).8

2 Lynch, G.E., 2003. Screening versus Plea Bargaining: Exactly What Are We Trading Off?

Stanford Law Review, 55(4), pp.1399-1408 at 1402.

3 Strawhorn v. McLeod, 1987 SCCR 413. Strawhorn

ealth Department, 1994. Firm and Fair: Improving the Delivery of Justice in Scotland. [PDF] Available at: < p.23.

4 Gormley, J., 2019. The Nature and Extent of Sentence Discounting for Guilty Pleas in Scottish Sheriff

Court Summary Cases. PhD Thesis: University of Strathclyde.

5 Dawes, W., Harvey, P., McIntosh, B., Nunney, F., & Phillips, A., 2011. Attitudes to guilty plea sentence

reductions. London: Sentencing Council of England and Wales. [PDF] Available at: < https://www.sentencingcouncil.org.uk/wp- content/uploads/Attitudes_to_Guilty_Plea_Sentence_Reductions_web1.PDF > p.2.

6 Wilson, P. and Ellis, R., 2013., Communicating Sentencing: exploring new ways to explain adult

sentences. DUCKFoOT Research and Development Ltd. Ministry of Justice Analytical Series 2013. [PDF] Available at: Ministry of Justice [Accessed 7 March 2019]. p.11. 7 those terms will be referred to also. 8 s the Question. in In C Spohn and P Brennan (eds) Sentencing Policies and Practices in

the 21st Century (Taylor & Francis). In press; and Alschuler, A.W., 1981. The changing plea bargaining

debate. California Law Review, 69, pp.652-730. 6

Sentence Discounting:

Sentencing and Plea Decision-Making

1.2 The Pre-trial Decision-Making Context

In deciding whether to alter a sentence due to how persons plead, a Scottish court is required to consider the stage at which any guilty plea has been tendered and the circumstances in which it is tendered.9 It is often considered desirable for this guilty plea to be tendered at an stage. However, the criminal justice journey for persons accused of an offence begins much earlier than

the first opportunity for a guilty plea. A persons criminal justice journey begins at the stage where

they become the object of police suspicion. The decision-making and preparation which occurs in these preliminary stages can be whether pleading guilty is an appropriate route for the person accused of an offence to take. Therefore, in

order to contextualise the sentence differential and the decision over whether to plead guilty or not

guilty, an overview of pre-trial stages in Scottish criminal procedure is provided. The landscape of rights for a suspect and a person accused of an offence have changed significantly in Scotland in recent years following the high profile case of Cadder.10 The case, -trial stage, drawing attention to this initial period of questioning, to its central role in the criminal process as a whole, and to the key rights which the law accords to those who are held by the state in this way.11 Most significantly, the case demanded that those detained by the police must be offered access to legal advice. Subsequent law reform has come most recently through the Criminal Justice (Scotland) Act 2016.12 The Act re charged, the status of legislation enacted in the immediate aftermath13 of Cadder, holds that under normal circumstances, a person can be held in police custody for 12 hours.14

A person in custody now has the right to consult with a solicitor at any time15 - this may be by face

to face consultation, but commonly takes the form of telephone communication.16 When being

9 Section 196(1) Cr

10 2011 SC (UKSC) 13.

11 Scottish

Criminal Evidence Law: Current Developments and Future Trends. Edinburgh: Edinburgh University

Press. at 20.

12

13 Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.

14 2016 Act, s.9. This must be reviewed after a period of six hours by a constable not involved in the

case (s.13). There can be a further 12 hour extension in limited circumstances, see s.11.

15 2016 Act, s.44.

16 Law Society of Scotland, 2015. Police Station Interviews: Advice and Information from the Law

Society of Scotland. at 78. [PDF] Available at: [Accessed 21 Feb 2019]. 7

Sentence Discounting:

Sentencing and Plea Decision-Making

interviewed by the police about an offence that the constable has reasonable grounds to believe that the person has committed, an individual has the right to have their solicitor present.17 During these preliminary stages, a solicitor can begin offering advice pertaining to the alleged offence - even before a person is charged. Upon charge, the person accused of an offence can (usually) no longer be questioned by the police.18 The procedure thereafter will be dictated by whether the matter is to be heard under solemn19 or summary procedure.20 Solemn matters are generally those which are more serious and would be tried before a jury. The solemn procedure usually commences in the Sheriff Court under a petition hearing, although alternatively an indictment can be served without a petition.21 There are also circumstances where a procedure can be commenced by the service of an indictment, but this is unusual. The calling of a petition before the sheriff will normally involve the person accused of an offence thereafter, much will depend on the crownc

further enquiries which are required to be conducted by the authorities. Where bail is to be granted,

the matter will be continued for further examination, and the person accused of an offence will be liberated. If the person accused of an offence is remanded, the matter will be continued for further examination, and normally the person accused of an offence will return to court within seven days, where they will either be released on bail or remanded and fully committed for trial. At this stage, time limits become significant for all parties. From this point, a guilty plea can be tendered at any time up to and including the trial itself. The section 76 procedure enables a person accused of an offence (who wishes to have their matter dealt with by way of a guilty plea at an early stage) to notify the crown of this intention and have the matter accelerated.22 regard to in sentencing, and this regard can contribute to the sentence differential permitted by section 196. Where it is considered that the procurator fiscal may proceed on a petition, the police should not liberate a person accused of an offence after charge.23 It is the normal practice that a person accused of an offence is arrested on a petition warrant and held in custody to appear in court on

17 2016, s.32.

18 Authorisation must be sought for questioning after this stage, as per the 2016 Act, s.35.

19 Solemn cases are heard in either the Sheriff Courts or the High Courts.

20 Summary cases typically involve less serious offences and are not jury triable. Summary cases are

heard in either the Sheriff Courts or the Justice of the Peace Courts. Most persons who are proceeded

against in court are prosecuted under summary procedure.

21 O'Reilly v HM Advocate, 1984 S.C.C.R. 352.

22
referred to as a trial.

23 CPSA, s.22.

8

Sentence Discounting:

Sentencing and Plea Decision-Making

the next working day. There are some circumstances (usually pertaining to the age of a person

accused of an offence or the fact that the crime libelled is historical) where the crown indicates to

the person accused of an offence that it holds a petition warrant for their arrest and invites them to

attend voluntarily. Whatever the outcome following a person accused appearance on the petition

warrant, an indictment invariably follows which sets a date in the Sheriff Court for a First Diet or a

Preliminary Hearing in the High Court. At either of these hearings, if the person accused of an

offence does not tender a plea of guilty, a trial date is set. On the first occasion, when the person

accused of an offence appears before a sheriff, a decision will be made about whether bail should be granted.24quotesdbs_dbs48.pdfusesText_48